On the 26th of June 2018, The Supreme Court has handed down a decision on Trump v. Hawaii, the third version of the Trump restriction on travel from majority Muslim nations, blocking travel from Iran, Libya, Somalia Syria, Yemen, North Korea and Venezuela. It decided in favor of the president’s administration by a 5-4 decision.

The concept with the third travel ban version was, if it would have passed legal muster with any other president, then the court could not decide against it. The president’s attorneys were able to present a reasonable argument that this action was based on US national security interests, which is how the president was able to prevail. The president’s rhetoric demonstrating an anti-Muslim bias was not enough to overcome this point.

My argument is that no other president would have attempted this “Muslim Travel Ban.” When the president was campaigning on this issue, the republican leaders in the US Congress publicly denounced this plan.

This event just underscores the point that we who do not support the president’s anti-immigration policies need to get out to vote in November 2018.

On June 26, 2018, Aziz Huq of VOX penned the following report, “The travel ban decision echoes some of the worst Supreme Court decisions in history” (“The logic SCOTUS used to uphold the travel ban would justify Japanese internment camps.”)

Excerpts:

Three times in American history, the Supreme Court has been asked to speak to a law, neutral on its face, yet rooted in a popular hatred or intolerance of minorities. Three times, it has chosen to ignore the real reasons for the law.

Three times, it has instead given a free pass to laws and policies predicated on discriminatory judgments that our Constitution supposedly bars.

“The first was Plessy v. Ferguson. In 1896, the Plessy Court upheld Homer Plessy’s conviction under Louisiana’s law mandating “equal but separate” railroad carriages. The central plank of the Court’s argument was simple: If Homer Plessy experienced a “badge of inferiority,” it was “not by reason of anything found in the act,” but “solely” because he chose to view the law that way.”

“The second was Korematsu v. United States ­— the Japanese internment camp case. Famously, the caseupheld in 1944 an executive order by President Franklin Roosevelt, authorizing “military areas … from which any or all persons may be excluded.” The Court reviewed “evidence” that Congress had gathered about the Japanese government’s “dissemination of propaganda and … maintenance of … influence” among Japanese Americans.”

“It carefully framed its Korematsu opinion as focused on a policy of “exclusion,” ignoring the network of civilian assembly centers and “relocation” camps — as the internment camps were euphemistically known — that ultimately held between 110,000 and 120,000 people.”

“The Court expressly refused to look beyond these proffered justifications — justifications that in the fullness of time were revealed as false. Rather, it rejected the discrimination issue because it “merely confuses the issue.” Emphasizing that “we are at war” and that “time was short,” the Court deferred to the decision of “properly constituted military authorities.”

“Even at the time, the problem with this logic was apparent: As Justice Robert Jackson cautioned, the Court’s embrace of the deference meant that judges would “never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.”

When the Supreme Court ignores the clearly discriminatory intent of laws, it goes badly astray

“The third case, of course, is Hawaii v. Trump. In upholding the president’s travel ban, both Chief Justice John Roberts’s bare majority opinion and Justice Anthony Kennedy’s concurring opinion go out of their way to reject the suggestion that religious animus motivated the ban, and they distance the Court from President Donald Trump’s many hateful and discriminatory statements about Muslims.”

“The majority opinion quoted a few, brief snippets of the president’s anti-Muslim remarks. But it was left to Justice Sonia Sotomayor, in her dissent, to remind us of just how numerous and nasty those remarks were. She noted Trump’s recurring obsession with the massacre of Muslims in the Philippines by Gen. John J. Pershing, in the early 1900s.”

“Trump at least twice approvingly repeated the apocryphal story that Pershing’s troops used bullets dipped in pigs’ blood as they executed Philippine insurgents. (The theme of no due process for racial and religious minorities is hard to miss).”

“The justices’ assertion that the president’s words do not reflect the religious neutrality of the policy, as written, is empty. The logical core of the travel ban decision is the idea that the government prevails in a national security case so long as it can muster some — any — trace of evidence of a legitimate motive. So long as a policy is “plausibly related to the Government’s stated objective to protect the country,” Chief Justice Roberts explained, it survives constitutional attack.”

“The Supreme Court framed its inquiry as an application of what is called “rational basis” review. But even when it uses a rational review lens, the Court has in the past been willing to see a discriminatory policy for what it truly is. Not so today. Indeed, one reading of the Court’s opinion is that there is no amount of evidence of discriminatory motives that could matter in a national security case — provided there is even one trace of a legitimate public order motive.”

The Supreme Court’s new test means surrendering its independent judgment in national-security cases

“If that’s true, the courts are toothless as a check on discrimination. Court challenges are then Kabuki theater, not a quest for compliance with our best ideals. The world is complex enough, and empirically messy enough, that it will simply always be possible for governments to whip up a “rational” justification for illegitimate acts, even if the true motivations are quite different. I can imagine almost no national security or immigration policy, even if justified to the public in terms of pure animus, and adopted in that spirit, that could not be re-described in way that would pass the test the Supreme Court just used.”

“Notably, this includes the Japanese internment. Under the Court’s “plausibly related” test, it is quite clear that the internment would have survived a constitutional challenge today: As the Korematsu majority explained, the government presented reasons why Japanese-Americans posed threats to national security threats, reasons that had nothing to do with race or ethnicity.”

“Thus, when Chief Justice Roberts claims that his decision has “nothing to do” with the Japanese internment case, and that it is “wholly inapt” to compare the two situations — he even slams the minority for striving for a cheap “rhetorical advantage” by mentioning the case — don’t believe it. When Roberts says that Korematsu was “gravely wrong the day it was decided,” and not good law, this is in stark tension with his own reasoning in the case at hand.”

“Both today and in 1944, the government could point to a scintilla of evidence for its policy. In both eras, moreover, discriminatory animus could easily be obscured by expanding the scope of a policy to cover others beyond the targeted minorities. The orders at issue in Korematsu, for example, also reached German and Italian citizens. The executive order at issue in Trump v. Hawaii reached some Venezuelans and North Koreans.”

“To be sure, the Korematsu caseconcerned a US citizen — but it is worth recalling that a large fraction of those detained were not citizens. (In any case, Chief Justice Roberts himself has in an earlier case, involving the First Amendment, crafted a watered-down version of judicial review for citizens’ constitutional rights.)”

Promise to discriminate, clean up the language later. Then get rubber-stamped.

“The result of today’s decision is that discrimination on racial and religious grounds is now de facto permissible — so long as it done under the rubric of immigration or national security. If there is what the Plessy Court called a “badge of inferiority” affixed to some because of their race or imputed religion, it is once more “solely” the result of their own imaginations.”

“The racial and religious minorities — citizens and noncitizens alike — who are at the sharp end of the travel ban’s discriminatory focus have reason to fear. The Court’s decision does more than recapitulate some of the worst opinions of our constitutional history.”

“It also condones a morally compromised style of governing in which policies are launched by an appeal to raw fear and hatred, and then whitewashed at the back end by a small measure of bureaucratic wheel-spinning.”

“This style of populism is in ascendance today. Expectations that the travel ban will be its first and last result are wishful thinking — thanks to the Supreme Court’s tone-deaf and morally obtuse judgment Tuesday.”

“Those hoping that the Court had learned something from Plessy and Korematsu will be disappointed. It hasn’t. I fear it is vulnerable racial and religious minorities that will pay the price. If they do, the Court deserves much of the blame.”

21 comments

Do we find this verdict/decision by SCOTUS as any sort of a surprise? Has no one else noticed that our Government, you know the one that was set up to have three separate but equal branches, has now become one with only one branch? It seems that the Legislative Branch is now taking orders from the Executive branch and the Judicial Branch is no longer using the Constitution in rendering decisions, but instead are simply rubber stamping the orders of our soon to be official King!

We are told to vote to stop this onslaught on our nations system of government. That is a good idea, but it must be asked, what are we actually voting for? Some people think that it is enough to simply be against tRump, but fail to realize to motivate people to get out to vote requires a clear message as to what you are offering that is different than what the other side is providing. Perhaps what I am trying to say is that it is not going to be enough to simply be against this man and his attempt to destroy this nation! We need a message to the people of this nation that will inspire them to vote, and at this point all we hear from the leadership of the Democrats is a jumbled up and disconnected non unified message!

At this time we have 133 days or 3192 hours or 191559 minutes, or 114935579 seconds until we as a nation choose to either survive as a collective body or fail into the quagmire that the tRump political party is leading us into… It is beyond urgent that a leader come forward, a message is found, and a force to save our nation come forth!! The time is now, not later…

YOU WILL NOT WIN THIS ELECTION ON A MESSAGE THAT IS SIMPLY AGAINST TRUMP!!!

YES!! — “It is beyond urgent that a leader come forward, a message is found, and a force to save our nation come forth!! ” AND “You will not win this election on a message that is simply against Trump!!!”

Sadly, from what I have seen and read, this person is still in hiding.

C’mon people! 133 days allows very little time to do what DESPERATELY needs to be done.

The leader you’re looking for is you. And me. And our fellow citizens who hate the direction the country is going. Speak out. Look at the candidates running to be your representatives — they are running on plenty of messages that aren’t Trump. Which ones speak to you? Then tell others. I like X because she stands for Y. You are the leader you’re looking for.

I just love your thinking because we are at a point where we can’t afford to wait for a savior / leader to rescue us.

Each and everyone of us count, have value and need to get out there to fight for this country’s well being.

There are so many messages that one can use, like the support of reasonable gun control measures; need to improve US infrastructure to mitigate against the harm of climate change, ending child abuse at the border, being a check on all of the president’s rash impulses.

We are the message. We want our country back. We want to return to a level of decency.

Take a page from TokyoSand. We can’t afford to wait for a leader/ savior. What if that person doesn’t appear. “We the People” are the USA. We are a democracy. Each and every one of us need to be leaders if we want to save this country.

Right now we are down to basics. We need to insure that children are not abused at the borders; that there is not another Neil Gorsuch in the Supreme Court, that there is a check on President Trump’s actions which will not happen if we/ democrats do not take back the majority seats in both houses of the US Congress.

We need to make sure that everyone we know calls their “Supervisor of Elections” to make sure that all their data is correct; help anyone if they need to get registered, make certain that everyone you know is informed on how to vote by mail or how to early vote.

Waiting to be rescued is never a formula for moving the needle forward for any project.

IN SHORT, YOU ARE THE LEADER! I AM THE LEADER! EACH AND EVERY ONE OF US WHO GIVES A DAMN ABOUT THIS COUNTRY, DECENCY, NON-RACIST, PRO-IMMIGRATION POLICIES ARE THE LEADERS. THIS COUNTRY IS MADE OF “WE THE PEOPLE” FOR A REASON.

I like Tokyosand’s comment, you and me are the leaders. We each have to encourage others we know to make sure that all are registered to vote and then make sure they vote. Make sure peoples in your area call their “Supervisor of Elections to verify that all their data is correct including the spelling of one’s name.

Make sure peoples know how to vote by mail or how to early vote. Educate your neighbors. Make sure everyone knows that this is a crucial election.

If we don’t want another Neit Gorsuch being nominated to the US Congress “we the people” have to act. You and me, if we care about saving our country, can’t wait for a savior.

Right now, there is a message of stopping child abuse at the borders; ending the anti-immigration haters having a strangle hold on our country; ending the NRA’s power where we can’t pass the most minimal / sensible gun control measures, where we can be a check on the president’s power.

We can only do all of the above if we all get out there to take back both houses of the US Congress. This is life and death time in our democracy.

YES YES YES 1000% right! Running on an anti-Trump campaign like Hillary did would net the same results. Dems need to have a real platform with a real leader to uphold a strong message. I’m still inclined for the DNC to support Bernie Sanders, but alas they have another agenda that’s not in alignment with the majority of the ppl. How many swing voters became disillusioned when Bernie was superdelegated out of the party despite winning majority of local counties, and voted for Trump out of spite!?

I hope for all our sakes the Democratic Party won’t make the same mistake twice.

“We the people,” the coalition of the decent simply need to help others around us to make that all are registered to vote and then we can take steps to make sure they vote. We can inform folks in our area to call their “Supervisor of Elections to verify that all their data is correct and how to vote by mail or how to early vote.

Yes i agree with tokyosand’s general premise, we do have to take action. But short of running for office ourselves, ideally there should be a super viable candidate who has the power, charisma and political will to oppose Trump. No one comes to mind, unless the DNC is hiding a liberal superstar we don’t know about!

What we can’t afford is another Neil Gorsuch on the Supreme Court. This means that we all need to get out to vote this November in order to prevent a repeat. The democrats need to take both houses in the US Congress.

It occurs to me that an email/letter/phone call campaign to the DNC is in order here. They tend to go by what the people want when nudged in the right direction. Email/write/call your concerns to them. tell them exactly what kind of platform you expect. We have just a year to get them in line. the platform is being discussed now so I strongly suggest those of us who want a strong platform start bugging the hell out of them.

Contacting the DNC to start spending monies on ADs to educate folks is a great positive idea. We don’t have to even mention President Trump. But we can start by educating peoples about the refugees at the border. We can inform peoples about how we are for sensible gun control measures. We can advertise how we favor Obamacare and/ or Medicare for all.

We can focus on making sure that everyone knows to get out there to vote this coming November 2018.

Hey Gronda,
Aside from DT probably threatening the jobs of at least 5 of the Justices, if not all, the real reason this case was lost was because the Court did not ask the right question. And Dumpy Trumpy knew he had their measure.
The court should have asked if they removed North Korea and Venezuela from the bill, since they were the odd countries out, would this have been a racially-discriminatory ban? And the answer would have had to be a resounding 9-0 “Yes!” The 2 keys were North Korea being a national security risk, for which DT so carefully laid the groundwork for with his “Rocketman” taunts and stunts, plus they are not a Muslim country. Also Venezuela was not a Muslim country either, whstever else the Deceiving Theatricist had on them. North Korea was a national security risk mainly because DT fanned the flames with his war of words. (Sure, Kim was a world risk, not just an American risk, but under Obama very little attention was paid to him. Trump purposely changed that. Then, after using North Korea as a Trojan Horse, he pretended to try to make peace with that very same security risk, and even demanded the Nobel Peace Prize before he even met with Kim!) Meanwhile, I never did find out what DT has against Venezuela, do they succor Drug Tsars? I only am certain that they are not a mainly Muslim country, even a little bit.
With those two circus rings deflecting attention away from the center ring of this circus, he was able to give the Justices the leeway to avoid the discrimination question. To me this was obviously a political ploy from the stsrt, but I stupidly hoped the SupCou would see through it. Now it turns out I was wrong to keep silent. But not being American…
And now the whole world will suffer. For this I do apologize.

You are absolutely right. The countries of Venezuela and N Korea are simply red herring added to the presidents travel ban to disguise its true intent which is to ban Muslims so that President Trump could tell his anti-immigration, anti-Muslim crowd who are a part of his base that he kept his promise.

The US Supreme Court will go down in infamy on this decision just like with the Dred -Scott case in 1867 that denied US citizenship to our Black brothers and sisters; and the 1944 Korematsu case that backed President Roosevelt in his executive order to intern US citizens of Japanese descent.